Universal claims fair use is fair game for DMCA takedown

As we told you last week, a lawsuit against Universal Music Group (UMG) for allegedly abusing the DMCA takedown process has finally come before a judge. In that case Stephanie Lenz, with the backing of the Electronic Frontier Foundation (EFF), is claiming that the takedown request issued was made in bad faith and UMG should be penalized as a deterrent to future meritless claims.

In an interesting twist UMG's lawyers seem to actually agree that the YouTube video in question is fair use rather than copyright infringement, but they're arguing that they don't have to take that into account before they issue a DMCA takedown request.

When asked by U.S. District Judge Jeremy Fogel "Are you saying there cannot be a misuse of a takedown notice if the material is copyrighted?"UMG attorney Kelly Klaus replied"I don't think 'fair use' qualifies."

The question was in regard to the wording of the DMCA, which states "Penalties are provided for knowing material misrepresentations in either a notice or a counter notice." Material misrepresentation means lying about the facts.

It also specifically identifies parties who are covered by this as "Any person who knowingly materially misrepresents that material is infringing, or that it was removed or blocked through mistake or misidentification."UMG is arguing that this passage only applies to parties falsely claiming ownership of a work, but the wording clearly seems to indicate otherwise.

There's no word on when we can expect to see a decision from Judge Fogel. His decision could have chilling implications for many people. Under UMG's reading of the law it's not their responsibility to distinguish between fair use and copyright infringement, even if it's obvious, before making legal claims abouit a work.

It makes you wonder how many times this has happened to someone who didn't know how to fight back.